People v. Rao
| Decision Date | 14 January 1985 |
| Citation | 107 A.D.2d 720,484 N.Y.S.2d 76 |
| Parties | The PEOPLE, etc., Respondent, v. Vincenzo A. RAO, Appellant. |
| Court | New York Supreme Court — Appellate Division |
John F. Middlemiss, Jr., Hauppauge (Alfred J. Cicale, Hauppauge, of counsel), for appellant.
Patrick Henry, Dist. Atty., Riverhead (Steven A. Hovani, Asst. Dist. Atty., Riverhead, of counsel, Joseph F. Carroll, Riverhead, on the brief), for respondent.
Before LAZER, J.P., and BRACKEN, RUBIN and EIBER, JJ.
MEMORANDUM BY THE COURT.
Appeal by defendant from a judgment of the County Court, Suffolk County, rendered July 29, 1982, convicting him of criminal possession of a weapon in the third degree (two counts), upon a jury verdict, and sentencing him, as a second felony offender, to two indeterminate concurrent terms of imprisonment, with a minimum of three years and a maximum of six years. The appeal brings up for review the denial, after a hearing, of defendant's motion to suppress a weapon.
Judgment affirmed.
The Trial Judge did not abuse his discretion when he denied the defense motion, brought pursuant to CPL 270.50, to have the jury view the area where the detectives observed defendant with a handgun. The cumulative impact of a number of changes affecting the visibility of that area at night, which occurred between the time of defendant's arrest in late November, 1981 and the time of the trial in late June, 1982, including alterations in the natural light and the artificial illumination from street lamps and storefronts, as well as the appearance of foliage on the trees, was sufficiently substantial so as to preclude such a viewing from assisting the jury in performing its fact-finding function (see People v. McCurdy, 86 A.D.2d 493, 450 N.Y.S.2d 507; People v. White, 67 A.D.2d 571, 416 N.Y.S.2d 260, revd. on other grounds 53 N.Y.2d 721, 439 N.Y.S.2d 333, 421 N.E.2d 825). The four photographs of the area, taken during the daytime approximately four months after defendant's arrest, were properly admitted into evidence after the Trial Judge admonished the jury that they were to use these photographs only to illustrate the general layout of the intersection, but not to recreate the actual visibility or appearance of the area on the night in question.
The observations made by one of the detectives at the scene, through a pair of binoculars, that the object the defendant transferred from his coat pocket to his waistband had the color and shape of a handgun provided both probable...
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...request to permit the jury to view the scene (see, CPL 270.50[1]; People v. Hamilton, 112 A.D.2d 951, 492 N.Y.S.2d 632; People v. Rao, 107 A.D.2d 720, 484 N.Y.S.2d 76; People v. McCurdy, 86 A.D.2d 493, 496, 450 N.Y.S.2d The court extensively charged the jury on how to evaluate the identific......
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